Most cases involving allegations of discipline or discharge
based on discrimination are brought under the disparate treatment theory. In a case of disparate treatment under Title
VII, an individual initially establishes a prima facie case of intentional
discrimination. In the Eleventh Circuit,
a plaintiff may establish a prima facie case of discrimination by showing: (1)
they are qualified; (2) they suffered an adverse employment action such as
termination or discipline; and (3) similarly situated employees outside of
their protected class were treated more favorably. SeeE.E.O.C. v.
Joe’s Stone Crabs, 296 F.3d 1265, 1273 (11th Cir. 2002).

However, a plaintiff’s failure to produce a comparator does
not necessarily doom the plaintiff’s case.
The plaintiff may survive summary judgment if he presents circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory
intent. A triable issue of fact exists
if the record, viewed in a light most favorable to the plaintiff, presents a
“convincing mosaic” of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.

The Eleventh Circuit recently reaffirmed the vague “convincing
mosaic” standard in Lewis v. Union City, Georgia, 877 F.3d 1000 (11th
Cir. 2017). A “convincing mosaic” may be
shown by evidence that demonstrates, among other things, suspicious timing,
ambiguous statements, and other bits and pieces from which an inference of discriminatory
intent may be drawn.

The
“convincing mosaic” standard makes it easier for plaintiffs to show
discrimination using evidence that, taken separately may seem insignificant,
but viewed as a whole, may be enough for a plaintiff to present a prima facie
case. Now that the Eleventh Circuit has
reaffirmed the use of this standard, employers should consider conducting
additional training for managers and decisionmakers to enforce that all
decisions need to be made without any discriminatory intent or malice and even
small incidents can be compiled later to paint a picture of discrimination.